Why is Gay marriage an issue for the Supreme court?????

[Swede Atlanta]

11. There are a number of issues intertwined here...

DOMA is arguably unconstitutional. The Full Faith and Credit Clause of the U.S. Constitution requires states to recognize legal actions/statuses (e.g. marriages/divorces) performed according to the relevant state law. Congress and the President cannot pass a law that says that no state shall be required to recognize a same-sex marriage performing in another state. Back from my Con Law days in law school I would say DOMA is unconstitutional on its face. The Constitution's full faith and credit clause would need to be amended.

The other issues are whether or not a state may deny same-gender couples a fundamental right (i.e. marriage) and the other is discrimination in the form of federal entitlement and other legal benefits.

As other posters have shown, although marriage is a matter of state law, it is recognized as a basic civil right. As such any action by the state to deny this right is subject to strict scrutiny. In Loving v. Virginia, the Supreme Court ruled that state laws prohibiting the marriage of persons from different races was unconstitutional. The Virginia statute was found to be unconstitutional on both an Equal Protection and Due Process (14th Amendment) basis. The same legal issue exists here. Does the state have the sufficient basis for such discrimination. In order for this prohibition to be legal the state must have (a) a compelling governmental interest, (b) the law must be narrowly tailored to achieve that governmental interest and (c) it must use the least restrictive means to achieve the objective.

One never knows how the Roberts could will rule but it seems states will have a difficult time fulfilling one or more of the requirements. Do states have a compelling interest in preventing same-sex couples from marriage? They will discuss the potential impact on minor children and the preservation of "traditional" marriage - both of which are easily debunked by empirical studies on the subject. They will say it will cost them alot of money to issue the licenses and deal with divorces and property settlement. If we are talking about an extreme minority of the population that self-identify as homosexual and only a minority of them will marry, then this argument fails as well.

Further I think there are strong arguments to be made under Equal Protection and Due Process theories. Sodomy laws were struck down under Due Process (basically persons have an inherent right to privacy and these laws unlawfully impinged on that right). O'Connor concurred but argued the law should apply on an Equal Protection basis - i.e. the state can prohibit sodomy but it has to apply equally to heterosexual and homosexual conduct.

If the states argue that "traditional marriage" is essential to civil society, that families are the core of our moral fiber, that marriage is the basis for pro-creation, etc. they will have a very tough time. Opponents can quote the statistics of heterosexual divorce and the fact that many, many heterosexual couples choose not to have children. So those arguments fall apart.

It will be interesting. I think Roberts' joining the majority in the ACA decision is a fluke. I think he, as a Catholic, will side with his other conservative brothers to deny same-gender couples the right to marry.